The taxpayer and an unrelated individual ("DeBruyn") accomplished a split-up of the business of a corporation ("DEL") of which they were equal common shareholders by transactions under which (i) DeBruyn converted his (Class A) common shares into Class B common shares, (ii) the taxpayer sold his Class A common shares of DEL to a newly-incorporated holding company for DeBruyn's wife ("114") for a purchase price of $150,000, (iii) DEL issued a promissory note to 114 in satisfaction of a $150,000 dividend declared by it on the Class A shares, (iv) 114 as signed the promissory note to the taxpayer in satisfaction of the purchase price for the Class A shares, (v) the taxpayer transferred the promissory note owing to him by DEL to a holding company ("HHCI"), and HHCI purchased assets of the Kingston branch of the business of DEL in consideration for satisfaction of the promissory note.
Lamarre J. made a finding that the primary purpose of the sale of the Class A shares by the taxpayer to 114 was to sever his ties with DeBruyn, that the dividend from DEL to 114 was not a transaction to facilitate the taxpayer's obtaining a tax benefit (given that it was not a transaction that benefited the taxpayer), and that the primary objective of the assignment to the taxpayer of the $150,000 note was, again, to terminate the taxpayer's business association with DeBruyn. Lamarre J. also noted that s. 245(3) did not permit the recharacterization of a transaction for the purpose of determining whether or not it was an avoidance transaction, and that the transaction did not represent an appropriation of DEL's funds by the taxpayer.